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Arbitrator dismisses privacy breach grievance based on actions of a snooping employee

On March 15th, the Grievance Settlement Board (Ontario) dismissed a grievance against the government for one employee’s intentional “snooping” into another employee’s employment insurance file.

Intentional unauthorized access to personal information by a trusted agent is a somewhat common scenario that has not yet been addressed by labour arbitrators. While arbitrators have taken jurisdiction over privacy grievances on a number of bases, privacy grievances have typically addressed intentional employer action – e.g. the administration of a drug test or the installation of a surveillance camera. This case raises an issue about an employer’s obligation to secure employee personal information and its liability for intentional access by another person. Can a reasonable safeguards duty arise inferentially out of the terms of a collective agreement? Is there some other source of jurisdiction for such claims? It is not clear.

The GSB ultimately finds jurisdiction in the Municipal Freedom of Information and Protection of Privacy Act, which it finds is an “employment-related statute” that can be the basis of arbitral jurisdiction. This is unfortunate because MFIPPA, in general, excludes employment-related records (and hence employees). There are now a handful of arbitral decisions that neglect to consider and apply the (very important) exclusion.

Having found jurisdiction rooted in MFIPPA, oddly, the GSB does not consider whether the government (or the Ministry’s head) failed to meet the MFIPPA “reasonable measures to prevent unauthorized access” security standard. Instead, it applied a vicarious liability analysis and dismissed the grievance. I’ll quote the GSB analysis in full:

41 Being guided by the principles set out in Re Bazley, I am of the view that the Employer is not vicariously liable for actions of Ms. X. Simply put, the “wrongful act” was not sufficiently related to conduct authorized by the Employer. Indeed, the accessing of the grievor’s EI file had nothing to do with the work assigned to employees. Employees were able to and indeed did access EI files but only in those instances where it was necessary to assist their clients.

42 The evidence established that the Employer had clear and sufficient policies regarding the protection of private information. Privacy matters were discussed with employees at the point that they were hired and although those policies could have and perhaps should have been formally reviewed more frequently by management, employees were reminded of their obligations frequently by way of a “pop up” upon entering their computers.

43 Further, Ms. Smith, a co-worker of the grievor, who testified for the Union was very forthright in her cross-examination that she knew that she was not to access the private information of anyone for her own interest. Moreover, this intrusion was the first time that she knew of anyone in the workplace doing such a thing. It might well be argued that this reinforces the view that the policy was known and followed in the workplace. Certainly there was no evidence of any other breach.

44 This intrusion was not an abuse of power. It was not an instance where someone with power over the grievor utilized their authority to carry out the wrong. It was a coworker — indeed I am of the view that it was the action of a rogue employee who, for her own purposes accessed the grievor’s EI file. It was not an action that could be seen to “further the Employer’s aims.” Indeed this activity was done without the sanction or knowledge of the Employer. I accept the Employer’s evidence that it knew nothing of the intrusion until being told by a coworker of the grievor and upon learning took immediate action to investigate and manage the issue and the Ms. X who received a significant suspension.

45 Finally, it must be recalled that this Board dismissed the grievor’s allegations that the Employer and her coworkers were bullying and harassing her in a separate decision. Accordingly it seems to me that it cannot be said that the intrusion into her EI records by Ms. X was “related to friction, confrontation or intimacy inherent in the employer’s enterprise.”

Whether an organization is vicariously liable for an employee’s intentional unauthorized access to personal information is a very significant legal issue. This analysis will receive significant attention.